The Relevance of International Humanitarian Law to Contemporary Armed Conflicts
Several questions about the applicability of IHL or the law of war during contemporary armed conflicts have been raised in recent years. In this article, the ICRC's head of delegation in Sri Lanka, Toon Vandenhove, says IHL remains as relevant as ever for all parties to armed conflict.
In recent years, international humanitarian law (IHL) has come to the forefront of public interest and debate. IHL is the body of rules applicable in situations of armed conflict, whether international or non-international. The IHL treaties most commonly referred to are the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, although IHL encompasses a range of other international treaties. In addition, many rules of IHL bind parties to armed conflicts, even where treaties do not directly apply. These rules of customary international law have been derived primarily from the practice and opinions of states over time.
As promoter and guardian of IHL, the International Committee of the Red Cross (ICRC) can only welcome broader awareness of this important body of law. Yet, some voices have challenged the relevance of IHL to contemporary armed conflicts, suggesting that it is ill equipped to deal with the threats posed to States when confronting non-State armed groups. At the heart of this complaint is the belief that IHL somehow places governments at a disadvantage by imposing obligations that tie their hands in the face of armed groups who are free to employ " terrorism " to advance their goals.
This view could not be further from the truth. Parity of rights and obligations is a bedrock principle of IHL. The rules governing the conduct of hostilities and the treatment of those not or no longer directly participating in the fighting apply equally to all the parties involved in an armed conflict. Non-State armed groups do not hold a privileged position under IHL. Moreover, IHL obligations bind both States and non-State armed groups regardless of the oth er parties'behavior because IHL's primary purpose is to protect all those not involved in hostilities.
Applying IHL to non-international armed conflict also does not shield armed groups from the reach of the State. To the contrary, IHL does not prohibit the targeting of persons taking a direct part in hostilities, including, of course, members of non-State armed groups. And, IHL does not stand in the way of detention, prosecution or punishment of members of armed groups for criminal offenses under domestic law or for violations of international norms, such as the prohibition of deliberate attacks against civilians. However, persons detained in relation to an armed conflict must in all circumstances be treated humanely in accordance with the requirements of Article 3 common to the 1949 Geneva Conventions. Again, all parties to the conflict are bound by these obligations.
Nor does IHL grant any privileges to " terrorism " as a tactic. It explicitly prohibits acts committed in armed conflict that are commonly referred to as " terrorist " . It is a basic principle of IHL that the parties engaged in armed conflict must at all times distinguish between civilians and combatants and between civilian objects and military objectives. IHL also prohibits the taking of hostages.
IHL further prohibits “measures of terrorism” and “acts of terrorism” against persons in the power of a party to the conflict in both international and non-international armed conflict. The Fourth Geneva Convention (Article 33) provides that “collective penalties and likewise all measures of intimidation or of terrorism are prohibited”, while Additional Protocol II (Article 4 (2) (d)) prohibits “acts of terrorism” against persons not or no longer taking part in hostilities. In addition, customary international humanitarian law applicable in both international and non-international armed conflicts prohibits acts or threats of violen ce intended to spread terror among the civilian population.
Finally, the application of IHL to a situation of armed conflict in which an armed group is a party does not grant legal legitimacy to the armed group. Common Article 3 expressly states that its application does not affect the legal status of parties to an armed conflict. This provision clarifies IHL's purely humanitarian purpose.
There are a myriad of other rules of IHL that further support its relevance and utility in contemporary armed conflicts. The primary challenge faced today is not how to revise IHL rules to make sense in modern wars, but rather how to ensure adherence to its norms so that it can fulfill its protective function.